A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit has just demanded that the state of Maryland redraw its congressional district map due to unacceptable partisan gerrymandering. Writing for the majority of the panel and joined by District Judge George L. Russell III, Circuit Judge Paul V. Niemeyer wrote, “When political considerations are taken into account to an extreme degree, the public perceives an abuse of the democratic process.” Concurring, but writing separately, Chief District Judge James K. Bredar declared partisan gerrymandering “noxious, a cancer on our democracy.”
What none have yet been able to successfully define, however, is what constitutes an unconstitutional “extreme degree” of gerrymandering, and what might be considered acceptable. For in any attempt to draw voting districts there will be multiple options, each carrying a certain degree of imprecision.
That is why research fellow Eric McGhee at the Public Policy Institute of California and law professor Nicholas Stephanopoulos at the University of Chicago conceived a mathematical tool for determining how badly skewed the voting was in any given district in any given election. The tool yields a clear number, called the “efficiency gap.” Any vote not needed to win an election, that is any vote for a losing candidate PLUS any vote cast for the winning candidate beyond the minimal number needed to win, is termed a “wasted vote.” Too many wasted votes for one party or the other, when compared with the partisan registration figures, suggests extreme partisan gerrymandering.
But the problem with any such measure is that it assumes that people “ought” to vote their party affiliation. It fails to take into account the strength of the candidates. A candidate with sterling qualities and a great campaign or a singularly unqualified opponent might win an unexpected number of votes and skew the “efficiency-gap” higher.
Proving that districts have been unduly gerrymandered is thus hard, but creating fairer districts is within our power. Here Gov. Larry Hogan is right: An independent, bipartisan commission is the first step. But bipartisan commissions have an unfortunate track record of gridlock. So the second step is to set out the mandate of that commission clearly up front, so that its work product — a legislative redistricting map — can be measured against it and rejected if unacceptable without needing the intervention of the court.
I believe the mandate of the commission should be to apply three criteria in drawing voting districts.
The first is to take into account existing political and geographic divisions seeking compact districts that follow known lines, irrespective of the political affiliations of the citizens therein. (Disregarding this is the original sin of partisan gerrymandering).
The second is to consider social and ethnic solidarity — considering parish lines, common clubs, schools, libraries — and uniting social units within political districts. The citizenry of such a district can be expected to share common concerns so as to better instruct and be represented by one representative. These two criteria, however, are liable to leave several options before the commission.
The third criterion, and the one which most clearly cuts against the partisan gerrymander, is that districts should be consciously drawn to come closest to partisan parity, leaving the choice of representative most closely in the hands of the district’s voters. Thus, when the first two criteria are exhausted, it should be possible to straightforwardly compare the remaining proposals side by side, and any deviation from this third criterion should be evident.
Partisan gerrymandering, like racial gerrymandering, will recede into a distant memory as our elections grow more representative of the voters on whose behalf they are held.